Hudson v. Commonwealth

MICHAEL HUDSON, S/K/A MICHAEL DERIK HUDSON v. COMMONWEALTH OF VIRGINIA

Record No. 0569-18-2

COURT OF APPEALS OF VIRGINIA

APRIL 2, 2019

UNPUBLISHED

Present: Judges Humphreys, Petty and Chafin

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY

B. Elliott Bondurant, Judge

Charles E. Haden for appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Michal Hudson was convicted by a jury of strangulation in violation of Code § 18.2-51.6, aggravated malicious wounding in violation of Code § 18.2-51.2, and abduction in violation of Code § 18.2-47. The only issue before this Court on appeal is whether the trial court erred in allowing the medical examiner's "report and testimony to include pathological diagnosis of 'Status Post Assault/Manual Strangulation' as a violation of the Rules of Evidence permitting an expert to comment on the ultimate issue in the case of the medical examiner because it gave opinion on the ultimate issue."¹ For the reasons stated below, we affirm the convictions.

BACKGROUND

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. We view the facts in the light most favorable to the prevailing party below, granting to it the benefit of any reasonable inferences; we review issues of law de novo. Hall v. Commonwealth, 55 Va. App. 451, 453 (2009).

As part of its case in chief, the Commonwealth called the medical examiner to testify regarding the injuries sustained by the victim. The medical examiner's partially-redacted autopsy report was also admitted into evidence.² Hudson objected to a pathological diagnosis in the report of "Status Post Assault/Manual Strangulation" and a summary that referenced an assault on December 18, 2015, in which the victim "was manually strangled."³ Hudson argued that the medical examiner's use of the phrase "Post Assault/Manual Strangulation" indicated a criminal act and thereby encompassed an ultimate issue in the case; it should therefore have been redacted. The Commonwealth argued that the ultimate issue was whether Hudson had committed the strangulation. After listening to extensive arguments by counsel, the trial court overruled Hudson's objection. The court found that the term strangulation was used as "more of a medical term" rather than "a legal finding." The court analogized the issue to a possession of a controlled substance case in which a lab technician may testify that the substance is a controlled substance, which is an element of the crime.

After the expert testimony of a neurologist but prior to the medical examiner's testimony, the court sua sponte revisited the question of whether the references by the medical examiner to post-assault strangulation should be allowed. After hearing a proffer of the medical examiner's testimony, the trial court allowed the testimony. The trial court noted that medical findings that a repercussion injury occurred in the brain and that the "lack of blood flow to the one area of the brain would be consistent with loss of blood flow due to compression of the neck" laid a sufficient foundation for the medical examiner to give her opinion that the victim had been strangled.⁴ The court concluded that the ultimate issue was whether Hudson strangled the victim, which was not referenced in the medical examiner's testimony or report.

Hudson appeals that ruling.

ANALYSIS

"The admission of expert testimony is committed to the sound discretion of the trial judge . . . ." Commonwealth v. Allen, 269 Va. 262, 274 (2005) (quoting Brown v. Corbin, 244 Va. 528, 531 (1992)). A trial court's decision will be reversed on appeal only if the trial court abused its discretion under the particular circumstances of the case. Kilby v. Commonwealth, 52 Va. App. 397, 410 (2008).

It is well established in Virginia that an expert witness may provide testimony, including opinions, if the fact finder "is confronted with issues" that "cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience gained in the ordinary affairs of life" and thus require "scientific or specialized knowledge."

Midgette v. Commonwealth, 69 Va. App. 362, 375 (2018) (quoting Schooler v. Commonealth, 14 Va. App. 418, 420 (1992)).

However, an expert witness "cannot give his opinion upon the precise or ultimate fact in issue, which must be left to the jury or the court trying the case without a jury for determination." An expert must not provide such an opinion, because testifying as to the ultimate fact in issue "invades the function of the fact finder."

Id. at 376 (quoting Llamera v. Commonwealth, 243 Va. 262, 264-65 (1992)). This rule is now codified in Virginia's Rules of Evidence, which states, "In criminal proceedings, opinion testimony on the ultimate issues of fact is not admissible." Va. R. Evid. 2:704(b).

It is sometimes difficult to discern the line between expert testimony that aids the factfinder and expert testimony that invades the function of the factfinder. "Experts are frequently permitted to express opinions in criminal cases about matters which closely approach the ultimate issue in the case." Kent Sinclair, Law of Evidence in Virginia § 13-10(c) (8th ed. 2018). The Supreme Court has enumerated several cases in which it considered the ultimate issue question.

In Ramsey [v. Commonwealth, 200 Va. 245 (1958)], an arson case, we held that the trial court erred in allowing an expert witness to conclude, based upon facts stated in a hypothetical question, that the fire was of incendiary origin. This was an opinion on an ultimate issue to be decided by the jury. 200 Va. at 251.

In Webb [v. Commonwealth, 204 Va. 24 (1963)], the accused was charged with embezzlement. We concluded that the trial court erred in permitting an expert witness to testify that the "effect" of two deposit slips prepared by the accused, which contained unrecorded receipts, was to replace funds converted by the accused to her own use. 204 Va. at 32-33. This, we said, was an opinion upon "the very issue in this case." Id. at 33.

The accused in Cartera [v. Commonwealth, 219 Va. 516 (1978),] was charged with two counts of rape. A physician, who had examined and treated the victims, was permitted to express his opinion that the victims had been raped. 219 Va. at 518. We held that this was reversible error because "[w]hether rape had occurred was the precise and ultimate issue in the case." Id. at 519.

In Bond [v. Commonwealth, 226 Va. 534 (1984)], the accused was charged with murder. The alleged victim died as a result of a fall from a fourth-floor balcony. 226 Va. at 535-36. A medical examiner's autopsy report ruled out a suicide and an accident and classified the death as a homicide. Id. at 536. We held that the medical examiner's opinion was inadmissible because "[t]he ultimate question was whether the decedent jumped intentionally, fell accidentally, or was thrown to her death." Id. at 539.

Llamera, 243 Va. at 265 (holding in prosecution for possession of cocaine with intent to distribute that the Commonwealth was required to prove both the element of possession and the intent to distribute, which were both ultimate issues of fact); see also Velazquez v. Commonwealth, 263 Va. 95, 106 (2002) (holding expert's testimony that the injuries were consistent with non-consensual intercourse invaded factfinder's role because "whether rape had occurred was the precise and ultimate issue in the case"); Justiss v. Commonwealth, 61 Va. App. 261, 278 (2012) (holding that expert's testimony that BB gun was "likely to cause death or great bodily injury" was impermissible opinion on ultimate issue of whether BB gun was a deadly weapon); Zelenak v. Commonwealth, 25 Va. App. 295, 300 (1997) (concluding defense expert's testimony that defendant was under stress was ultimate issue where defendant argued the defense of duress). But see Hussen v. Commonwealth, 257 Va. 93, 99 (1999) (holding expert's opinion that victim's injuries were not consistent with consensual sex was not a comment on the ultimate issue, which was "whether the defendant's conduct was against the victim's will"); Midgette, 69 Va. App. at 376 (holding expert's testimony that a video was not an accurate representation of a traffic stop was not the ultimate issue in charge that "appellant testified falsely when he stated that the video . . . was an accurate depiction of the traffic stop"); Bowman v. Commonwealth, 30 Va. App. 298, 303 (1999) (holding identity of perpetrator was not an ultimate issue of fact).

Here, Hudson was indicted for strangulation of the victim in violation of Code § 18.2-51.6, which provides that "[a]ny person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation."⁵ Thus, the ultimate issues for determination by the factfinder were whether (1) Hudson committed an act (2) that fit the legal definition of strangulation. The trial court concluded that the testimony given by the medical examiner was medical in nature and did not constitute the ultimate issue in the case. The trial court's reasoning has merit, but we do not need to decide today whether the court erred in declining to redact references to an "assault." We conclude that any error in permitting those references was harmless.⁶

A harmless error analysis is required by Code § 8.01-678.

When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial

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